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The Supreme Court’s Decisions Raise More Questions Than Answers (6092)

COMMENTARY

The results of the two marriage cases decided June 26 are already shrouded in the mists of history. What I mean is: The struggle over marriage in our society neither began nor will end with these decisions, and those carrying on the fight are arguing already about what these decisions mean for the future. This concern about portents is natural and fair enough. But in the rush to interpret and to prophecy, we risk losing track of what the court actually said.

Let’s start there.

One case is Perry v. Hollingsworth. It is almost universally referred to as the “Prop. 8” case, so named for the California ballot initiative that limited marriage to the union of a man and a woman and which passed after a court there forced marriage to be open to same-sex couples. Prop. 8 thus returned California law to the status quo ante. It was challenged in the courts by same-sex couples who wished to legally marry (as some had during the brief window of opportunity closed by Prop. 8).

After what was truly (no spin here) a bizarre trial, Judge Vaughn Walker held that Proposition 8 was inconsistent with the Constitution’s guarantee of equality for “gay” people, a holding which the local appeals court affirmed and which was then taken to the Supreme Court.

The Supreme Court resolved Perry on procedural grounds. Because the state of California declined to defend Prop. 8 in court (much as the Obama administration declined to defend the federal Defense of Marriage Act in the other marriage case decided on June 26), the lower court allowed the backers of Prop. 8 to appear as defendants. These folks were not public officials. The Supreme Court ruled — plausibly, if not rightly — that they lacked the necessary “standing,” which is a legal term basically about the party’s connection to the lawsuit. The high court effectively nullified the whole prior proceeding.

No one knows for sure what exactly the law in California about marriage is now. Some lawyers say that Prop. 8 is now in place; others say that it is not. Gov. Jerry Brown has jumped in to say that, no matter what, he is going to authorize marriage licenses for same-sex couples. Time will sort it all out. But it is surely true that we are talking only about California. There is no possible effect of the Perry ruling upon any other state.

DOMA Ruling’s Effects

The second case decided June 26, United States v. Windsor, is much more important than the Prop. 8 case. Its immediate practical effects are greater, and its meaning for the future is potentially enormous. It is the focal point of the arguments about portents.

Edith Windsor was party to a same-sex "marriage" recognized by the law of New York. When her partner died, Windsor was obliged to pay an estate tax to the federal government. It was a tax she would have been spared had the Internal Revenue Service recognized the New York marriage. It did not do so, because a 1996 statute stipulated that “marriage” in all corners of national law (such as the one about estate taxes) meant the union of a man and a woman only, even in any state which recognizes same-sex relationships as legal marriages. A couple of men in, say, Rhode Island could file a tax return “jointly” for their state liability. But the Defense of Marriage Act, or DOMA, meant that even they would have to file singly on their federal 1040s.

Windsor challenged DOMA as a violation of her constitutional equality. She won. The basic holding of the Supreme Court was that, in any state where same-sex "marriage" is legally recognized, all the federal benefits which follow marriage flow to these couples as well. Our Rhode Island couple now may file a tax return jointly under state law — and under federal law, too.

The immediate practical effect of Windsor is that, in 12 states and the District of Columbia, all legally married same-sex couples are henceforth eligible for federal treatment on the same terms as all other married couples. At least for the moment, the 38 states which limit marriage to opposite-sex couples retain the constitutional authority to do so.

Justice Anthony Kennedy wrote for the majority in the DOMA case and made this point explicitly: “This opinion and its holding are confined to those lawful marriages” — that is, to those states which have freely chosen to recognize same-sex "marriage" or which may do so in the future. He affirmed repeatedly the “sovereign” authority of all the states to choose between competing understandings of marriage. Let’s call this the “disclaimer.”

Commentators are already deeply split on whether the disclaimer will hold. They split over the implications of Windsor — the disclaimer notwithstanding — for those 38 states. There is a real question here, due first of all to the ambiguity involved in saying that states are “sovereign” over marriage. Is it limited to licensing in-state marriages or does it include recognizing marriages licensed in other states?

The basic problem arises from the fact that, while marriages occur in one place at one time — such as mine, in Cleveland, on Aug. 1, 1981 — married couples are mobile. Justice Antonin Scalia supplied in his dissenting opinion several examples of what can happen: Suppose a same-sex couple married in New York moves to Mississippi. Are they “married” down south on April 15, when they file a 1040? One could say that Mississippi is “sovereign” over marriage within its borders and still maintain that this couple is “married” for federal tax purposes.

Does Windsor naturally lead to the conclusion that legally married same-sex couples carry their federal identity (as married) from one state to another, so that there would be many “married” (federally) same-sex couples, even in, say, Mississippi?

It might.

This problem can arise in a simpler form. Let’s leave out the federal government entirely. When a New York same-sex "married" couple moves to, say, Indiana and finds work and sets up a household, are they no longer (legally) married? Again, we are not talking about Indiana having to issue these two folks a marriage license. But do they need one any more than I did when I moved to Indiana? I was married in Ohio and have been treated ever since by other states as, simply, married.

The question is whether Windsor naturally leads to the conclusion that Indiana, for example, has to recognize on equal terms all the marriages of couples from, say, New York. Or may Indiana officials single out Gotham same-sex couples and treat them differently — and, yes, worse — than their opposite-sex counterparts?

It is hard to say.

The Ticking Time Bomb

Windsor is vexing due to more than the ambiguity of key terms. There is a deeper source of its potentially enormous and baleful impact. Windsor might be a time bomb ticking away under marriage in 38 states because its reasoning might defeat its advertised limitation — the disclaimer that federal marriage benefits must be extended only to same-sex couples married in states that legally sanction it.

This is the question commentators are debating today: Does the rationale of Windsor naturally lead to the conclusion that no state may deny the status of marriage to a couple solely on the grounds that they are of the same sex?

Two answers to it were offered yesterday in the Windsor dissents.

Justice Scalia issued a challenge in his dissent that was especially tart, even by his pungent standards: “It takes real cheek for today’s majority to assure us … that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here. … I promise you this: The only thing that will ‘confine’ the court’s holding is its sense of what it can get away with.” The limitation in the majority opinion’s penultimate sentence (the disclaimer) is, he said, a “bald, unreasoned disclaimer.”

Chief Justice John Roberts recognized that there are potentially troubling implications in the majority’s rationale. But one should, he nevertheless said, take those justices at their word, credit the advertised limitation and do what one can to hold the court to it.

My judgment is that the best reading of Windsor lies somewhere in between.

Justice Kennedy means it when he issues the disclaimer. But the driving force of his opinion for the court is, no doubt, these two beliefs: one, that homosexuals and lesbians must never be “demeaned” or “stigmatized” (his words) by the law; and two, that the first belief is required by the Constitution. So far considered, there is nothing about Kennedy’s beliefs that apply only or even especially to the national government but not to the states. Even in our federal system, all government entities must treat people with equal respect.

From Windsor, we can further safely conclude that Kennedy believes that any singling out of homosexuals and lesbians from a class of persons to which they otherwise properly belong is to demean and to stigmatize them, in violation of the Constitution. So he conceptualized the Defense of Marriage Act as one in which Congress took a look at all the couples married in New York and selected out a batch of them — those of the same sex — for adverse treatment.

The decisive question about the future is how Kennedy would conceptualize the actions of any state that limits marriage to opposite-sex couples. Will he see the natural effect of recognizing the conjugal nature of marriage and thus the inherent unsuitability of same-sex couples to marry? Or will he see government discrimination, wherein the state confers dignity upon some but not all couples, qualified for a more modern form of “companionate “marriage (of sexual intimacy, a common home and a core of mutual commitment) — where the sorting criterion is sexual orientation?

No one can say now for sure, not even (I strongly suspect) Anthony Kennedy. It is, however, and, in my judgment, more than likely going to be the latter.

Gerard Bradley is a professor of constitutional law at the University of Notre Dame.

Comments

Mort I can not agree with what you are saying. In today society, it is required that both married couples need to work to make ends meet. Unless the man has an high paying job and can afford to have their spouse be a stay home parent, I can not see how your suggestions or comments can help keep the marriage commitment stable. You mention divorce, there is not proof that having only one spouse working has helped to keep a couple from getting a divorce. If you have a stay home parent, is not there still a chance that this spouse could fall into the sin of adultery? or anything else that could break down the sanctity of marriage? As for birth control, I’m pro-life and find abortion a sin, but is not having birth control used in a marriage really going to stop a couple from having an abortion? Your question or statements can/do have a catch 22.

Posted by mort salzburger on Tuesday, Jul 2, 2013 3:16 PM (EDT):

the biggest offense against marriage is divorce which almost 100% heterosexaul. we must reverse the laws on divorce. the second huge offense is sex outside of marriage. we must push for harsh punitive measures against those who commit this crime. the third huge offense against marriage is use of birth control. we must remove all access to any reproductive rights for women. a social problem we have now is that the women have left the home and have gone to work. the womans job is to bring love and children into the family. we must work to put women back in the home and leave the workworld to the men. many people call themselves orthodox or traditional catholics but they simply focus on easy target issues. not the real problems. no divorce. no sex outside marriage. no birth control. women back into the home. work to pass those laws. if you can.

Posted by Christine on Sunday, Jun 30, 2013 4:42 PM (EDT):

Bottom line, Jesuitical graduate of Boston College, carefully reading the link to the HISTORY of marriage, there isn’t any of evidence that ANYONE considered MARRIAGE or whatever they were calling it between same sexes, MARRIAGE or contract was between a MAN and a WOMAN. That is the discussion.

Posted by Vance on Saturday, Jun 29, 2013 9:07 PM (EDT):

The ‘Questions’ that the Supreme Court raises are when are the nations Bishops and priests going to publicly denounce Homosexual Marriage and when are they going to stand up for the Holy Sacrament of Marriage?

Posted by Dj on Friday, Jun 28, 2013 7:25 PM (EDT):

I have read all the comments and I see fear of letting satin in our lives. First if you are a true christian and truly follow in Jesus’ footsteps, then you would see truly what all this marriage between a man and a woman and a same sex partnership, marriage, is nothing but that, a marriage recognized by those 13 states who have accepted same sex marriage. These individuals are not asking to have the right to marry in the church, either it be Catholic, Protestant, or others. We are true Christians when we can take our minds out of others bedrooms and put our minds into prayer. We are not all going to hell because prop8 and DOMA have been seen as unconstitutional. It is mentioned that LGBTQ persons are going against the commandments of God. How do you see this. The 10 commandments does not mention anything about marriage between man and women, it states that we shall not commit adultery. This commandments is for all of us, which I must state is broken by so many individuals both straight and gay. If we are having sex outside of marriage no matter what our sexual orientation is, that we are committing adultery, and if we are having extra marital relations outside of marriage then all these people are committing adultery. The question here is,now that the thirteen states have recognized marriage between both straight couples and gag couples, that is this now going against God’s law? Only God can answer that question. We are trying to judge other people for who they love. In the 60’s it was considered a sin to marry someone outside your race, but now we accept these marriages. It was mentioned that that LGBTQ people choose to be attracted to same sex because they have been molested or something. This statement is ignorant. God made us in his image, and there are children that are under the age of 6 who live in a home with a mom and dad who have never been molested at the age their at who see themselves attracted to the same sex. Or we can take this to children in grades 1-5 who have not started puberty who see themselves attracted to the same sex and live in a household with a mom and dad and have not been molested, still be attracted to the same sex. How about those kids who are in grades 6 to 8 who find themselves attracted to same sex, have they all been molested by someone. The answer to all of these is not all LGBTQ children have been molested. Are we to tell our 3yr old or older child that they are not made in the eyes of God, that they are sinners because their feeling for the same sex goes against the way they are born. It was stated that children of same sex marriages or partnerships, play house with a mom and dad as well as a m/m or f/f. If your child is playing in these roles are they not showing a healthy mind that is not oozing prejudiced behavior. children learn how to be prejudices by society, by us the parents, uncle, aunts etc…. Jesus gave us two new commandments and those are, love God with all your heart with all your soul and with all your mind and to love one another as your love yourself. It does not say be choosy about who you love, or judge someone who loves someone different then ourselves. If you’re wondering I am a christian man who has chosen to not be married and to not have relations with anyone. To live a life of celibacy. I can not see myself married to someone man or woman, and put them through my medical conditions. I rely on God to get me through each and every day. I pray for His love and peace, His understanding and knowledge. I know that to go against God’s love for all his creations is setting myself up to sin. The church doesn’t have to accept marriage between a man and man or women and women, because it does go against what we are taught in our faith community. But if we go around and keep judging others that are different from us, then we are allowing ourselves to sin. I try to live my life in the best Christian way as possible, thus living a life of celibacy. We,as Christians, can not go around and cause our children to sin,because we don’t believe in all that is going on in todays world. We have to explain to them that their are some people who are born and have feelings for those of the same sex. and not to judge them because by judging we are committing a sin in the eyes of our Lord. Our kids are going to be apart of this world when they start going to school and meeting friends that have same sex parents. I have seen what prejudice behavior can do to a child. It leaves them confused and lost, because it go against their innocence and love for all of God’s creation. We are suppose to teach God’s law but again we are not to judge others. What happens when your child comes home one day or a family member, brother or sister, and tells you they are gay or lesbian? Do we condemn them to hell? do we stop loving them because the person they love goes against our own believes? How much damage will it do to condemn them, to tell them they can’t feel the way they do, it’s unnatural. I have seen time and again the outcome of these types of actions. The child starts to believe he / her are not worth anything, they are unloved by you and that they have nowhere to go. These children start having suicidal ideations, and struck out to find someone to love them for who they are and that person might not be the right person for them to be around. Is it not easier to love your child and talk with your child and see how he or she is coming around to feeling love for the same sex. Don’t we all love someone of the same sex. I know I tell all my friends that I love them, as a Christian that is what we are taught by Jesus in the new testament, “as I love you therefore you are to love others as you love yourself”.
As a counselor who listens to the children of today and being a Christian man, I have to be understanding to their needs and understanding. To teach our kids at church about God’s love and His laws, that I can not confuse or condemn one child for feelings different than my own. I have to teach them God’s love and teachings and that “thou shalt not commit adultery, does not only pertain to a married couple but also to those who are single and having sex outside of marriage. This is the true lesson to teach. Love not hate, truth not judgement, God’s will and our will.

Posted by Stilbelieve on Friday, Jun 28, 2013 6:54 PM (EDT):

The U.S. Supreme Court just took the right-to-vote away from every California voter in their decision on Prop 8 by returning Prop 8 back to the closeted homosexual federal district court judge (Walker) who rejected the case based on standing. That means the lawyers for Prop 8 that defended the passage and constitutionality of Prop 8 through all the court levels in CA up to the State Supreme Court which ruled in favor of the voter approved constitutional ballot measure by a 6-1 decision did not have standing to defend the measure it federal court because they were not a state office. This situation was caused by the Governor of CA, Schwarzenegger, and Jerry Brown, the AG, who would not defended the measure. That means the taxpayers who voted in favor of the measure were plain out of luck. Which means the Governor, who disagrees with a ballot measure that is passed by the voters, can choose to veto the vote of the people!

There were other unsavory things done to the voters for Prop 8. Two different county clerks were sued by two different homosexual couples who were denied marriage licensees in two different counties in CA. For some reason, the county clerk who wanted to defend Prop 8 in court was denied that right. The other county clerk that opposed Prop 8, from San Francisco, was allowed to remain a defendant but choose not to defend it.

We voters in favor of marriage being only between 1 man and 1 woman were cheated, and the sanctity of the vote was destroyed.

We know that God will triumph in the end, no matter how much evil comes against us. And satan is fiercely throwing everything at us, so that we can be his. He knows that he’s going to lose, but wants to take as many as he can back to hell with him. We have to stand fast, put the armor around us, which is the word of God, His sacraments and Our Lady’s protection. Many will fall, even those who call themselves Christians. I see children of lesbian couples already confused, and play acting out with same sex children that they too are a couple pretending to be married. How can it be said that a gay person won’t affect those around them. When you watch a gay couple on tv, and find yourself accepting them without realizing it, because they seem so happy. Yes we love the person, but not the sin. I’m very sadden and afraid for our country. Satan is trying to destroy our Christian values, first by abortion, now this. We may see that abomination at the altar sooner than we think.

Posted by Tina on Friday, Jun 28, 2013 2:41 PM (EDT):

I agree with everything written here and like Bobette wrote, “God will not be mocked” it is just such a sad state this country is in; how much more will He allow? I’m so frightened for my little ones who will be told by the world this is acceptable and I am a biggot (and actually thinking illegally)- how do we ensure eternity for them when evil is portrayed as good and right everywhere they turn? I know I need more hope as we are told Good will prevail, but I feel so greatly outnumbered! Some say it’s media making the majority appear left but is it? I feel the majority in my community and even in my church see this as a right to love rather than a perversion.

Posted by Robert A.Rowland on Friday, Jun 28, 2013 2:28 PM (EDT):

Michelle: I think the Democrat Party is trying to legalize Hell.

Posted by Blake on Friday, Jun 28, 2013 2:24 PM (EDT):

Love your comments Michelle. As an orthodox Catholic the biggest objection we have to gay marriage I think is the sexual aspect which would be a serious offense against God. The other crux of the matter seems to be the tax codes / benefits. Well if any two people are living together and depending on each other then whats the harm in giving them the benefits of any traditional married couple. If it seriously affects the tax revenue in a negative way then amend the tax code (which needs to be done anyway). The only issue with this argument though is that it will be a short time until more than two people will seek “married” status for these tax benefits etc. What a mess. Thanks libs.

Posted by Robert A.Rowland on Friday, Jun 28, 2013 2:20 PM (EDT):

Where in the Constitution does it say the government must provide equal rights for gays who openly violate the Commandments of the God our founders and former Christian nation trusted? The Supreme Court has already destroyed the Declaration of Independence with Roe v Wade. That was strike one in its denial of the God of Abraham. Their decision on allow Gay Marriage will be the second denial. If the drive the socialist tyrant is making against freedom and religious liberty succeeds, that will be the final denial to make America a pagan land. The traitors that elected Obama will have destroyed our nation’s heritage. And they along with our nation will be denied by God. Moral Americans better mount an exhaustive campaign to emulate Nineveh if they want to salvage liberty and freedom.

Posted by Michelle on Friday, Jun 28, 2013 12:50 PM (EDT):

So why then must marriage licenses be limited to those who wish to have a sexual relationship? Why can good friends not then “marry” and receive the benefits of marriage from the federal government? Why do we limit marriage to the groups of people who wish the engage in sexual acts of some form together? If later in life a couple chooses for whatever reason to no longer engage in sex acts are they still married? Is the reason for marriage just to be licensed to exclusive sexual partnership? If that is not the reason then why exclude good friends, bachelor brothers, spinster sisters or any other non sexual partnership from being a marriage? There is no question on a marriage license form about accepting children from God or even if you intend to engage in sex acts, therefore by current reasoning there is no need to exclude any pairing whatsoever…heterosexual, homosexual, platotonic, or incestuous. This is because there is no reasonable definition being put forth of what a marriage is and why the state should have any interest whatsoever in it. If there is not a reason of protecting the children and families that are the product of the marriage, the state really should have no interest and should get out of the marriage business. We could just apply to the Feds as to who will receive the benefits with us. Marriage is one man, one woman, for life and open to life.

Posted by Bobbette Davis on Friday, Jun 28, 2013 12:25 PM (EDT):

Whatever happened to the “common good” of society. Marriage between one man and one woman civilizes a society. Traditional marriage and family,ordained by GOD,is the nucleus of our world. Legitimizing gay marriage IS the slippery slope for all types of unholy and deviant behavior and unions. It’s only a matter of time before polygamists will “demand” their day in court, as well as those who “demand” that incestual relationships and lifestyle be considered “normal”. NO!!! GOD will not be mocked. I shudder to think what our chastisement will be.

Posted by charles harmett on Friday, Jun 28, 2013 11:47 AM (EDT):

Gays want gay marriage so that they can have access to children who they can then gayify. That is why Pope Francis has called gay marriage child abuse.

Posted by PLKrakower on Friday, Jun 28, 2013 10:44 AM (EDT):

Thank you for the very helpful analysis and explanation. Since the crux of the Perry case is the concept of “standing” I would welcome just a little further explanation of how the concept works and how a different view of it might have given us a more meaningful decision in the case. For instance, did any of the dissenting judges contend that NOM should have been afforded ‘standing’ and on what grounds?

Posted by Turley on Friday, Jun 28, 2013 9:50 AM (EDT):

I do have concerns with the issuance of this opinion as I’ve stated before. The homosexual perverse lifestyle is seeking to ingratiate itself upon the American populace as a legitimate Civil Right as defined under Title VII of Federal Code. That code is based on legitimacy of either physical characteristics or religious beliefs. As a girl scout leader once stated to me, “Christianity is the latest Civil Right group recently being defended under Title VII.” There is nothing definable about the physical characteristics about a homosexuals except behavior around members of their same sex. Studies have shown nothing in their DNA that makes them any different than others. The legitimacy of that was promulagated by ex-homosexual and counselor Chris Doyle, who was molested as a boy by a male family member. Chris states that the only way he knew to deal with other males was to act out the only way he knew, SEXUALLY. I’ll leave on this thought. The goal is not the promulgation of a homosexual lifestyle, but rather the elimination of God from the American culture.

Posted by Momom on Friday, Jun 28, 2013 9:32 AM (EDT):

The National Organization for Marriage is asking for people to write to their congressional representatives in support of a proposed constitutional amendment regarding marriage. There at times seem to be so little we can do to speak out for the true purpose of marriage, but this is one opportunity.

Posted by charles harmett on Friday, Jun 28, 2013 9:25 AM (EDT):

in the diocese where I live, the diocese of trenton, the left wing nuns on the bus were formally welcomed and celebrated with an article in the diocesan newspaper. Many catholics will be led astray by their 1970’s social justice liberal nonsense. The usccb needs to develop a sense of urgency in combatting dissent among its own ranks.

Posted by charles harmett on Friday, Jun 28, 2013 9:06 AM (EDT):

One used to able to assume that marriage was between a man and a woman. That assumption no longer exists. The general direction of the courts seems to be toward recognition of gay marriage which is a disaster for this culture and for the church. The catholic church needs to develop a sense of URGENCY in battling this assault on traditional marriage. A formal declaration by all priests at all masses on a sunday sooner rather than later is a first step. Many catholics are confused.
There must be clarity. No dissent can be tolerated in this grave matter. Also, any group of catholics who support abortion or gay marriage need to be formally excommunicated from the church as soon as possible.

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